Washington Courts May Not Base Custody on Sexual Orientation

Courts should remain impartial regarding religious beliefs and sexual orientation when considering custody arrangements and parenting plans. When a court relies on and adopts the opinions and recommendations of witnesses who express biases based on these issues, the entire parenting plan may be called into question. Such was the situation in a case recently decided by the Washington Supreme Court.

The couple had been married for nearly 20 years at the time of their divorce. They had three sons, whom they raised in a conservative Christian church and sent to Christian schools. The wife had been the primary caretaker of the children, and the husband had been the primary wage earner for most of their marriage.

In 2011, the wife told the husband she thought she might be gay. She stopped going to the family church and began a romantic relationship with a woman.

The husband began taking on more parenting responsibilities than he had previously, including adjusting his work schedule. The couple split household duties. The wife thought the husband increased his participation in the household duties to undermine her relationship with the kids.

The wife filed for dissolution in May 2013. At trial, the children’s therapist expressed concerns that a transition from the “sheltered school” they attended to a public school would be difficult for them. She said the best place for the children was a stable environment with minimal future changes. She recommended that the wife’s partner not have contact with the kids for the time being. She also testified that she thought the husband was more stable. The wife did not have a job or a plan for future housing. The therapist expressed concerns that the wife relied on her partner for support. She further testified that the husband had a history of being a good provider and that the children had stated that they had seen their mother less and spent more time with their father over the past couple of years.

The guardian ad litem also recommended that the court designate the husband as the residential parent, pointing to the mother’s absence from the home at periods over the past two or three years. She noted that the wife had historically had the role of primary parent, but she stated she had not been available to the kids over the past three years. The Washington Supreme Court noted, however, that her recommendation was also based in part on the wife’s sexual orientation. She had referred to the wife’s “lifestyle choice” in her report, stating that it was “a choice that can result in significant controversy.” She subsequently claimed that her use of the word “choice” did not relate to the wife’s orientation but to her choice to spend time away from the home, terminate the marriage, and live with her partner. The guardian ad litem stated that these choices were inconsistent with the principles the couple had taught their children and disrupted the wife’s relationship with her children. She further stated that the choices had caused controversy and confusion, due to the family’s faith. She also suggested that the children could be bullied and that their religious upbringing would make it difficult for them to accept their mother’s orientation.

In addition to recommending that the father be the residential parent, the guardian ad litem recommended that the therapist make the determination of when the wife’s partner could have contact with the children. She also recommended prohibitions on the wife’s ability to discuss religion and sexual orientation with the children unless specifically approved by the therapist.

The trial court adopted much of the guardian ad litem’s recommendations. The trial court found the wife had been a stay-at-home mom before 2011 but was now away about 20% of the time. The trial court noted the children’s religious upbringing and the potential disruption the mother’s orientation posed. The court designated the husband as the primary residential parent and awarded him sole decision-making authority over the children’s religion, education, and day care. The trial court denied the wife’s request for maintenance and ordered her to pay the statutory minimum child support.

The appeals court affirmed most of the trial court’s order but held the trial court had erred in granting the husband sole decision-making authority over religion and in limiting the wife’s conduct and speech as to religion and sexual orientation. The wife petitioned the Washington Supreme Court for review.

A trial court must consider statutory factors in setting a permanent parenting plan. The court may not consider the parent’s sexual orientation as a factor in determining custody, absent a showing of harm. Although there was some evidence supporting the trial court’s finding that the husband was more stable, the record supported a finding that both parents were capable, absent consideration of the wife’s orientation and the effect it had on the husband’s religious beliefs. The Supreme Court found that the record showed the trial court had considered the wife’s sexual orientation as the primary reason for designating the husband as the custodial parent and the religious decision-maker. The Court also found that the guardian ad litem’s report, recommendation, and testimony showed an impermissible bias due to the mother’s orientation. The Court found this bias “permeated [the court’s] ruling and casts doubt on the entire parenting plan.”

The Court held that courts must remain neutral regarding sexual orientation and base custody decisions on the needs of the children rather than a parent’s sexual orientation. Here, the court’s reasoning was that the children’s religious upbringing made them uncomfortable with homosexuality, and the husband was better suited to maintain their religious upbringing. Absent evidence of harm, this type of reasoning discriminated against the mother for her sexual orientation. The Court also found bias in the guardian ad litem’s testimony and reports, noting that great weight was placed on her testimony due to her role. The Court found the trial court had abused its discretion in designating the husband as the residential parent.

The trial court also abused its discretion in favoring the husband’s religious beliefs. Courts must be strictly impartial among religious beliefs. The Court found the trial court’s consideration of the wife’s orientation “was intertwined with an implicit preference for [the husband’s] religious beliefs.” The court had made no findings of actual or potential harm to the children due to the wife’s changed religious beliefs.

The Court found that the improper bias so permeated the proceedings that the trial court abused its discretion in the other provisions of the parenting plan. The Supreme Court also reversed and remanded with regard to the provisions giving the husband sole decision-making authority over education and denying maintenance. The Court also ruled the case should be reassigned to a different judge on remand.

The Washington Supreme Court has now made it clear that courts may not base custody decisions upon a parent’s sexual orientation without a showing of harm to the children. If you are facing a divorce, you need aggressive representation to protect your rights and ensure the appropriate issues are before the court. The Washington high-asset divorce attorneys at Blair & Kim, PLLC can assist you with these issues and more. Call us at (206) 622-6562 or contact us online to discuss your case.